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2013 DIGILAW 2343 (RAJ)

Vasudev v. Anar Devi

2013-12-20

VEERENDR SINGH SIRADHANA

body2013
Hon'ble SIRADHANA, J.—In the above-noted writ application number 13408/2012, a challenge is made to the order dated 25th April, 2012; deleting issues number 1, 2 and 3. In writ application number 13407/2012, the order dated 28th August, 2012, dismissing the application under Order 6 Rule 17 of the Code of Civil Procedure (for short 'the CPC') is under challenge. The writ applications preferred by the petitioners/plaintiffs arise out of the same Civil Suit Number 130/02 (204/84) and therefore, both the writ applications are being adjudicated upon by this common order. 2. Shorn of the unnecessary details, the essential material facts and particulars necessary for adjudication of the controversy are; that the petitioners/plaintiffs filed a suit for permanent injunction detailing out the property in paragraph 1 and 2 of the plaint, with the pleadings to the effect that their father Late Shri Babulal Ji Mangal purchased the property, but he got the sale deed executed and registered in favour of his daughter-in-law (Late Smt. Anar Devi), by way of benami transaction. The property, since the date of purchase i.e. 18th December, 1961, was enjoyed as joint Hindu family property. Late Shri Babulal Ji, partitioned the property amongst his five sons of 30th July, 1965 and since then the petitioners/plaintiffs and Shri Krishan Gopal, resided in their respective portions. It is further pleaded case of the petitioners/plaintiffs that two common facilities (latrine) on the ground floor in the suit property, were used jointly, but in order to claim sole right over the common facility area (latrine), Late Smt. Anar Devi (defendant number 1) and her husband Late Shri Krishan Gopal (deendant number 3); moved an application before the Municipal Corporation, Beawar, seeking permission to construct flash latrine in place of existing facility, and thereby intended to deprive the petitioners/plaintiffs from the use thereof. Therefore, the suit was instituted with a prayer for permanent injunction restraining Late Smt. Anar Devi (defendant number 1) and her husband Late Shri Krishan Gopal (defendant number 3) from raising any construction and also the Municipal Corporation, Beawar (defendant number 2) from according any permission. Therefore, the suit was instituted with a prayer for permanent injunction restraining Late Smt. Anar Devi (defendant number 1) and her husband Late Shri Krishan Gopal (defendant number 3) from raising any construction and also the Municipal Corporation, Beawar (defendant number 2) from according any permission. Late Smt. Anar Devi and her husband Late Shri Krishan Gopal, in their written statement, denied the material facts stated in the plaint and in addition, pleaded that since the petitioners/plaintiffs have not sought any declaration to the effect that the suit property was a joint Hindu family property, the suit is not maintainable. 3. The learned trial Court on the basis of the pleadings of the parties framed as many as nine issues on 8th September, 2009 including issue number 1, 2 and 3, which reads thus: ^^1- vk;k fooknxzLr tk;nkn of.kZr en la-1 okni= oknhx.k o izfroknhx.k dh la;qä tk;nkn gSA ----- oknh 2- vk;k oknxzLr tk;nkn Lo- ckcwyky th }kjk izfroknh la-1 ds uke ls csukeh [kjhn dhA ----- oknh 3- vk;k oknxzzLr tk;nkn ij oknhx.k crkSj ekfyd dkfct gSA ----- oknhx.k** 4. On 25th April, 2012, the learned trial Court on perusal of the plaint and the written statements, concluded that the petitioners/plaintiffs have filed the suit seeking only relief of permanent injunction and have not sought any declaration as to whether the property in dispute was a joint Hindu family property, and have neither sought any declaration to the effect that the purchase of the property in dispute by Late Shri Babulal was a benami transaction nor have sought any declaration to the effect that they were in possession of the property in dispute as 'owners', and therefore, deleted the issue number 1, 2 and 3, aforementioned. The petitioners/plaintiffs in view of the deletion of issue number 1, 2 and 3; filed an application under Order 6 Rule 17 CPC on 15th May, 2012 seeking relief of declaration with consequential amendments, including valuation of the suit for the purpose of court fee and jurisdiction of the Court. The application was seriously resisted by the respondents/defendants on the ground of delay and change in the nature of the suit; in case the application is allowed. The application was seriously resisted by the respondents/defendants on the ground of delay and change in the nature of the suit; in case the application is allowed. The learned trial Court on a consideration of the application under Order 6 Rule 17 CPC, its response and after hearing the learned counsel for the parties, dismissed the application vide impugned order dated 28th August, 2012. Therefore, the petitioners/ plaintiffs have assailed order dated 25th April, 2012 on account of deletion of issues number 1, 2 and 3 as well as the order dated 28th August, 2012 declining the application for amendment. 5. I have heard the learned counsel for the parties and with their assistance perused the material available on record. 6. The plaintiffs/petitioners instituted the suit for permanent injunction on 1st October, 1984 and the written statement was filed on 7th February, 2001. It is further submitted that the reply to he application for temporary injunction was submitted in the year 1985. Issues were settled in the year 2009. The learned trial Court on a perusal of the pleaded facts in the plaint and the written statement, deleted the issue number 1, 2 and 3 vide impugned order dated 25th April, 2012. The application under Order 6 Rule 17 CPC has been declined vide impugned order dated 28th August, 2012. 7. In view of the facts detailed out herein above, as revealed from the material available on record, it will be useful to refer to the text of Order 6 Rule 17 of the CPC, which reads thus: "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties." 8. Amendment Act 46 of 1999 deleted the original provision, but the same has been restored by Amendment Act 22 of 2002. Further, from a perusal of Rule 17, it is apparent that amendment of the pleadings at any stage of the proceedings, is permissible with a liberal approach in order to ensure determination of real controversy in question between the parties, if the same is made prior to the commencement of the trial. Further, from a perusal of Rule 17, it is apparent that amendment of the pleadings at any stage of the proceedings, is permissible with a liberal approach in order to ensure determination of real controversy in question between the parties, if the same is made prior to the commencement of the trial. The learned trial Court on a consideration of the pleadings of the plait and written statement, framed the issues including issue number 1, 2 and 3 as aforesaid, on 8th September, 2009; and deleted the issue number 1, 2 and 3, on 25th April, 2012. Moreover, the application for amendment has been declined on 28th August, 2012. It is also not in dispute that the written statement to the suit instituted on 1st October, 1984 was filed on 7th February, 2001. 9. The object underlying Rule 17 of Order 6 of the CPC, enables the Courts to allow all the amendments, which are necessary for determination of real controversy and disputes between the parties provided it does not cause any injustice or prejudice to other side. 10. Having considered the nature of the amendments sought for by the petitioners/plaintiffs in the application preferred under Order 6 Rule 17 CPC dated 15th May, 2012, I find that it does not change the nature of the suit in view of the pleaded facts under paragraph 1 and 2 of the plaint, which is implicit in the factual matrix detailed out therein. 11. In Pankaja & Anr. vs. Yellapa (Dead) by LR's & Ors. : AIR 2004 SC 4102 ; (2004) 6 SCC 415 , the Hon'ble Supreme Court held that if he granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. In the same decision, it was further held that an amendment seeking declaration of title shall not introduce a different relief when the necessary factual basis had already been laid down in the plaint in regard to the title. 12. Considering the date of institution of the suit, date of written statement filed, settlement of issues in the year 2009 and deletion of issue number 1, 2 and 3 on 25th April, 2012; I am of the opinion that the amendment sought for by the petitioners/plaintiffs, deserves to be allowed in order to ensure determination of real questions in the controversy between the parties. 13. 13. In the light of the principle enunciated by the Hon'ble Apex Court of the land in the case of J. Samuel & Ors. vs. Gattu Mahesh & Ors. : (2012) 2 SCC 300 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. & Ors. : (2012) 5 SCC 337 as well as in the factual matrix of the case, in my opinion, the respondents/defendants, will not be prejudiced in any manner and are also entitled to file the additional written statement. It is also made clear that it will be open for the respondents/defendants to raise all the legal issues including one relating to the litigation. However, in order to balance the equities the amendment sought for is allowed subject to payment of cost of Rs.8,000/- (Rupees : Eight Thousand only). 14. In the result, the writ applications stand allowed. The impugned order dated 25th April, 2012 in SBCWP No.13408/2012; and order dated 28th August, 2012 in SBCWP No.13407/2012; are hereby quashed and set aside. 15. In view of the final adjudication on the writ applications, the stay applications stand closed.